As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-02455
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
POST EFFECTIVE AMENDMENT TO
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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RGC RESOURCES, INC.
(Exact name of registrant as specified in its charter)
(successor to Roanoke Gas Company)
Virginia 54-1909697
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
519 Kimball Avenue, N.E.
Roanoke, Virginia 24016
(540) 777-4427
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-----------------------------
AMENDED AND RESTATED KEY EMPLOYEE STOCK OPTION
PLAN OF RGC RESOURCES, INC.
(full title of the Plan)
-----------------------------
JOHN B. WILLIAMSON, III
Presidentand Chief Executive Officer RGC
RESOURCES, INC.
519 Kimball Avenue, N.E.
Roanoke, Virginia 24016
(540) 777-4427
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
-----------------------------
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Copy to:
NICHOLAS C. CONTE, ESQ.
NICOLE C. DANIEL, ESQ.
WOODS, ROGERS & HAZLEGROVE, P.L.C.
First Union Tower, Suite 1400
10 South Jefferson Street
Roanoke, Virginia 24011
(540) 983-7537
THIS POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT
(NO. 333-02455) SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE WITH
RULE 464 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
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EXPLANATORY NOTE
Roanoke Gas Company ("Roanoke Gas") previously registered 50,000 shares
of common stock ("Roanoke Gas Common Stock") issuable pursuant to the Roanoke
Gas Company Key Employee Stock Option Plan (the "Plan"), and filing fees of
$315.00 were paid with respect to same, on the Registration Statement on Form
S-8 (No. 333-02455) of Roanoke Gas. RGC Resources, Inc. ("Registrant") is the
successor issuer to Roanoke Gas pursuant to the Amended and Restated Agreement
and Plan of Merger referenced as Exhibit 2 hereto (the "Merger Agreement") and,
pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the
"Act"), hereby expressly adopts Roanoke Gas' Registration Statement on Form S-8
(No. 333-02455) as Registrant's own registration statement for all purposes of
the Act and the Securities Exchange Act of 1934, as amended. The contents of
Registration Statement No. 333-02455 are incorporated herein by reference.
Pursuant to the Merger Agreement, (a) at 10:00 p.m. on July 1, 1999 each share
of Roanoke Gas Common Stock then outstanding was converted into one share of
common stock, $5.00 par value per share, of the Registrant ("Common Stock"),
(b) the Plan was amended to utilize Common Stock instead of Roanoke Gas common
stock, and (c) the Plan was assumed by the Registrant. Of such 50,000 shares of
Common Stock, no shares remained available for option grants as of July 1, 1999,
13,000 shares had been issued upon exercise of options, and 37,000 shares were
subject to options not yet exercised.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(a) Roanoke Gas Company's latest Annual Report on Form 10-K for the
fiscal year ended September 30, 1998.
(b) All other reports filed by Roanoke Gas and Registrant pursuant to
Section 13(a) or 15(d) of the Securities and Exchange Act of 134 ("Exchange
Act") since September 30, 1998.
(c) the description of the Registrant's $5.00 par value common stock
contained in its Registration Statement on Form S-4 dated January 28, 1999,
including any amendments filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates what all securities offered hereby have
been sold or which deregisters all securities offered
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hereby then unsold, shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Plan and in connection with
the issuance of Common Stock pursuant thereto have been passed upon for the
Registrant by Woods, Rogers & Hazlegrove, P.L.C. The Partners of the firm of
Woods, Rogers & Hazlegrove, P.L.C. and members of their immediate families
beneficially owned, as of July 1, 1999, in the aggregate, approximately 63,000
shares of common stock.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE
COMPANY.
Section 13.1-692.1 of the Code of Virginia, 1950, as amended, places a
limitation on the liability of officers and directors of a corporation in any
proceeding brought by or in the right of the corporation or brought by or on
behalf of shareholders of the corporation. The damages assessed against an
officer or director arising out of a single transaction, occurrence, or course
of conduct shall not exceed the greater of $100,000 or the amount of cash
compensation received by the officer or director from the corporation during the
12 months immediately preceding the act or omission for which liability was
imposed. The statute also authorizes the corporation, in its articles of
incorporation or, if approved by the shareholders, in its bylaws, to provide for
a different specific monetary limit on, or to eliminate entirely, liability. The
liability of an officer or director shall not be limited if the officer or
director engaged in willful misconduct or a knowing violation of the criminal
law or any federal or state securities law. The Company's Articles of
Incorporation contain a provision which eliminates, to the full extent that the
laws of the Commonwealth of Virginia permit, the liability of an officer or
director of the Company to the corporation or its shareholders for monetary
damages for any breach of duty as a director or officer.
The Company's Articles of Incorporation also require the Company to
indemnify any director or officer who is or was a party to a proceeding,
including a proceeding by or in the right of the corporation, by reason of the
fact that he is or was such a director or officer or is or was serving at the
request of the Company as a director, officer, employee or agent of another
entity. Directors and officers of the Company are entitled to be indemnified
against all liabilities and expenses incurred by the director or officer in the
proceeding, except such liabilities and expenses as are incurred because of his
or her willful misconduct or knowing violation of the criminal law. Unless a
determination has been made that indemnification is not permissible, a director
or officer also is entitled to have the Company make advances and reimbursement
for
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expenses prior to final disposition of the proceeding upon receipt of a written
undertaking from the director or officer to repay the amounts advanced or
reimbursed if it is ultimately determined that he or she is not entitled to
indemnification. The Board of Directors of the Company also has the authority to
extend to employees, agents, and other persons serving at the request of the
Company the same indemnification rights held by directors and officers, subject
to all of the accompanying conditions and obligations.
Virginia Code Section 13.1-700.1 permits a court, upon application of a
director or officer, to review the Company's determination as to a director's or
officer's request for advances, reimbursement or indemnification. If it
determines that the director or officer is entitled to such advances,
reimbursement or indemnification, the court may order the Company to make
advances and/or reimbursement for expenses or to provide indemnification, in
which case the court shall also order the Company to pay the officer's or
director's reasonable expenses incurred to obtain the order. With respect to a
proceeding by or in the right of the corporation, the court may order
indemnification to the extent of the officer's or director's reasonable expenses
if it determines that, considering all the relevant circumstances, the officer
or director is entitled to indemnification even though he or she was adjudged
liable, and may also order the Company to pay the officer's and director's
reasonable expenses incurred to obtain the order.
The Company has the power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another entity, against any liability asserted
against or incurred by such person, in any such capacity or arising from his or
her status as such, whether or not the Company would have the power to indemnify
such person against such liability under the Articles of Incorporation.
The Company maintains a directors' and officers' legal liability
insurance policy in the amount of $2,000,000, issued by the Chubb Group
Insurance Companies. The policy provides coverage up to 100% of its face amount,
subject to certain deductible or retention amounts. In general, the policy
insures:
o the Company's directors and officers against losses by reason of
their wrongful acts, and/or
o the Company against claims against the directors and officers by
reasons of their wrongful acts for which the Company is required
to indemnify or pay, all as such terms are defined in the policy
and subject to the terms, conditions and exclusions contained
therein.
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ITEM 7: EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8: EXHIBITS.
The exhibits to the Registration Statement are listed in the
Exhibit Index elsewhere herein.
ITEM 9: UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by Section
10(a)(3) of the Securities Act; (ii) to reflect in the prospectus
any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; (iii) to include
any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or
material change to such information in the Registration
Statement; provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration Statement is on Form
S-3, Form S-8 or Form F-3, and the information required to be
included in the post-effective amendment to those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(3) to remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new Registrant Statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling persons of the
Registrant in the successful defense of any action, suit or proceedings) is
asserted by such director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction to question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
EXHIBITS
Exhibit No. Description
- ----------- -----------
2 Amended and Restated Agreement and Plan of Merger and
Reorganization (incorporated by reference to Exhibit 2 to
Form 8-K filed on July 2, 1999)
4(a) Specimen copy of certificate for RGC Resources, Inc. common
stock, $5.00 par value (incorporated herein by reference to
Exhibit 4(a) of the Registration Statement on Form S-4 (No.
333-67311)
4(b) Article I of the Bylaws of RGC Resources, Inc.
(incorporated herein by reference to Exhibit 3(b) of the
Registration Statement on Form S-4 (No. 333-67311)
4(c) Amended and Restated Key Employee Stock Option Plan of RGC
Resources, Inc.
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5 Opinion of Woods, Rogers & Hazlegrove, P.L.C. with respect
to legality of securities registered
23(a) Consent of Woods, Rogers & Hazlegrove, P.L.C. (included in
Exhibit (5))
23(b) Consent of Deloitte & Touche LLP
23(c) Consent of KPMG LLP
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Post-effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Roanoke,
Commonwealth of Virginia, on July 2, 1999.
RGC RESOURCES, INC.
By: s/John B. Williamson, III
---------------------------
John B. Williamson, III
President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-effective Amendment to the Registration Statement has been signed by the
following persons in the capacities indicated as of July 2, 1999.
Signature Title
s/John B. Williamson, III President, Chief Executive
- ------------------------------- Officer and Director (Chief
(John B. Williamson, III) Executive Officer)
s/Roger L. Baumgardner Vice President, Secretary
- ------------------------------- and Treasurer (Principal
(Roger L. Baumgardner) Accounting Officer)
s/Lynn D. Avis Director
- -------------------------------
(Lynn D. Avis)
s/Abney S. Boxley, III Director
- -------------------------------
(Abney S. Boxley, III)
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s/Frank T. Ellett Director
- -------------------------------
(Frank T. Ellett)
s/Frank A. Farmer, Jr. Director
- -------------------------------
(Frank A. Farmer, Jr.)
s/Wilbur L. Hazlegrove Director
- -------------------------------
(Wilbur L. Hazlegrove)
s/J. Allen Layman Director
- -------------------------------
(J. Allen Layman)
s/Thomas L. Robertson Director
- -------------------------------
(Thomas L. Robertson)
s/S. Frank Smith Director
- -------------------------------
(S. Frank Smith)
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2 Amended and Restated Agreement and Plan of Merger and
Reorganization (incorporated by reference to Exhibit 2 to
Form 8-K filed on July 2, 1999)
4(a) Specimen copy of certificate for RGC Resources, Inc. common
stock, $5.00 par value (incorporated herein by reference to
Exhibit 4(a) of the Registration Statement on Form S-4
(No. 333-67311)
4(b) Article I of the Bylaws of RGC Resources, Inc.
(incorporated herein by reference to Exhibit 3(b) of the
Registration Statement on Form S-4 (No. 333-67311)
4(c) Amended and Restated Key Employee Stock Option Plan of RGC
Resources, Inc.
5 Opinion of Woods, Rogers & Hazlegrove, P.L.C. with respect
to legality of securities registered
23(a) Consent of Woods, Rogers & Hazlegrove, P.L.C. (included in
Exhibit (5))
23(b) Consent of Deloitte & Touche LLP
23(c) Consent of KPMG LLP
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AMENDED AND RESTATED
KEY EMPLOYEE STOCK OPTION PLAN
OF RGC RESOURCES, INC.
1. ASSUMPTION OF PLAN BY RGC RESOURCES, INC.; PURPOSE
This Amended and Restated Key Employee Stock Option Plan of RGC
Resources, Inc. (as successor to Roanoke Gas Company) (the "Plan") amends and
restates the Roanoke Gas Company Key Employee Stock Option Plan (the "Original
Plan"), which was adopted by the Board of Directors of Roanoke Gas Company
("Roanoke Gas") on October 30, 1995, and became effective as of such date upon
approval of the Original Plan by the shareholders of Roanoke Gas Company on
January 22, 1996. The amendment and restatement of the Original Plan and the
assumption of liabilities hereunder are undertaken by RGC Resources, Inc. (the
"Corporation"), as successor to Roanoke Gas, in connection with the
reorganization of Roanoke Gas into a holding company structure (the
"Reorganization") as part of which Roanoke Gas became a wholly-owned subsidiary
of RGC Resources as of 10:00 p.m. on July 1, 1999. The Reorganization is being
effected pursuant to an Amended and Restated Agreement and Plan and Merger,
dated as of May 24, 1999, which amends and restates the Agreement and Plan of
Merger dated as of September 28, 1998 (the "Merger Agreement"), which was
approved by the stockholders of Roanoke Gas on March 31, 1999, and pursuant to
which Roanoke Gas and RGC Resources agreed that from and after the effective
date of the Merger provided for therein, this Plan would utilize RGC Resources
common stock instead of Roanoke Gas common stock. Accordingly, as of the
effective date hereof, RGC Resources assumes the obligations of Roanoke Gas
under the Original Plan, including without limitation obligations with respect
to Options granted pursuant to the Original Plan, and undertakes to carry out
all responsibilities of the Company specified herein. Roanoke Gas consents and
agrees to the assumption by RGC Resources of the Roanoke Gas' responsibilities
under this Plan.
The purpose of this Plan is to promote the interests of the Corporation
and its shareholders by aiding in attracting, retaining and motivating officers
and other key employees of the Corporation and its affiliates. The Plan is
designed to accomplish these objectives by providing such officers and key
employees with an opportunity to acquire a proprietary interest in the
Corporation by means of options and thereby benefit from appreciation in value
of the shares of the Corporation's Common Stock. This opportunity should provide
additional incentives for such officers and key employees to continue to use
their best efforts and superior performances to promote the best interests of
the Corporation, for their own benefit and for the benefit of the shareholders.
2. DEFINITIONS:
The following words and phrases as used herein shall have the meanings
set forth below:
2.1 "Board" shall mean the Board of Directors of the Corporation.
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2.2 "Change in Control" shall mean a change in control of a nature
that would be required to be reported (assuming such event has not been
"previously reported") in response to Item 1(a) of the Current Report on Form
8-K, as in effect on the date hereof, pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"); provided that,
notwithstanding the foregoing and without limitation, such a change in control
shall be deemed to have occurred at such time as (i) any Person is or becomes
the "beneficial owner" (as defined in Rule 13d-3 or Rule 13d-5 under the
Exchange Act as in effect on the date hereof), directly or indirectly, of 20% or
more of the combined voting power of the Corporation's voting securities; (ii)
the incumbent Board ceases for any reason to constitute at least the majority of
the Board, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least 75% of the directors comprising
the incumbent Board (either by a specific vote or by approval of the proxy
statement of the Corporation in which such person is named as a nominee for
director, without objection to such nomination) shall be, for purposes of this
clause (ii) considered as though such person were a member of the incumbent
Board; (iii) all or substantially all of the assets of the Corporation are sold,
transferred or conveyed by any means, including but not limited to, direct
purchase or merger, if the transferee is not controlled by the Corporation,
control meaning the ownership of more than 50% of the combined voting power of
such entity's voting securities; or (iv) the Corporation is merged or
consolidated with another corporation or entity and as a result of such merger
or consolidation less than 75% of the outstanding voting securities of the
surviving or resulting corporation or entity shall be owned in the aggregate by
the former shareholders of the Corporation. Notwithstanding anything in the
foregoing to the contrary, no change in control shall be deemed to have occurred
for purposes of this Agreement by virtue of any transaction (i) which results in
the Optionee or a group of Persons which includes the Optionee, acquiring,
directly or indirectly, 20% or more of the combined voting power of the
Corporation's voting securities; or (ii) which results in the Corporation, any
affiliate of the Corporation or any profit-sharing plan, employee stock
ownership plan or employee benefit plan of the Corporation or any of its
affiliates (or any trustee of or fiduciary with respect to any such plan acting
in such capacity) acquiring, directly or indirectly, 20% or more of the combined
voting power of the Corporation's voting securities.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
2.4 "Committee" shall mean the Compensation Committee of the Board of
Directors, or such other committee of the Board as may be designated by the
Board from time to time, for the purpose of administering this Plan as
contemplated by Section 3 of this document. The composition of the Committee
shall meet the disinterested administration requirements of Rule 16b-3
promulgated pursuant to the Exchange Act. Should any member of the Committee
cease to be a disinterested person under Rule 16b-3(c)(2)(I) or any subsequent
rule, he shall immediately be deemed not to be a member of the Committee for all
purposes of this Plan.
2.5 "Common Stock" shall mean the common stock of the Corporation.
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2.6 "Option" shall mean any stock option granted pursuant to this
Plan.
2.7 "Optionee" shall mean any person who is the holder of an Option
granted under this Plan.
2.8 "Person" shall mean person within the meaning of Sections 3(a)(9)
and 13(d)(3) of the Exchange Act.
2.9 "Plan" shall mean this Amended and Restated Key Employee Stock
Option Plan of RGC Resources, Inc.
2.10 "Fair Market Value" shall mean the closing sales price of Common
Stock on a nationally recognized stock exchange or, if not traded on such an
exchange, the NASDAQ National Market System, on the date involved if that is a
trading day, or if not, the first trading day prior to such day. If said Common
Stock is not quoted on the NASDAQ National Market System, then Fair Market Value
shall mean the average between the bid and asked price on the date involved if
that is a trading day, or if not, the first trading day prior to such day. If
there is no such average, the Committee shall determine Fair Market Value in
good faith. In determining such Fair Market Value, the Committee shall utilize
all information which it deems pertinent, including, but not limited to, actual
sale or purchase data, and may engage the services of an accounting firm to
assist in the determination. The Committee shall further determine Fair Market
Value using guidelines promulgated pursuant to the pertinent provisions of the
Code.
3. ADMINISTRATION:
3.1 The Plan shall be administered by the Committee, which may make
such determinations and take such actions in connection with the Plan as it
deems necessary. Such determinations and actions shall be binding and conclusive
for all purposes and upon all persons.
3.2 The Committee may correct any defects, omissions or ambiguities,
or reconcile any inconsistencies, in the Plan, or in any document issued
pursuant to the Plan, in the manner and to the extent it shall deem reasonably
desirable. The Committee shall have full and sole authority to make all
administrative, interpretative and other determinations with respect to the Plan
and all such determinations shall be final and conclusive.
3.3 As provided in Section 6.1 hereof, the Committee shall have full
and sole authority to make all grants to be made hereunder.
3.4 Any other provision of the Plan to the contrary notwithstanding,
the Committee is authorized to take such action as it, in its discretion, may
deem necessary or advisable and fair and equitable with regard to Optionees in
the event of: a Change in Control of the Corporation; a tender, exchange or
similar offer for all or any part of the Common Stock made by an entity, person
or group (other than the Corporation, any affiliate of the Corporation or any
savings, pension or other benefit plan for the benefit of employees of the
Corporation or its affiliates); a
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merger of the Corporation into, a consolidation of the Corporation with, or an
acquisition of the Corporation by another corporation; or a sale or transfer of
all or substantially all of the Corporation's assets. Such action, in the
Committee's discretion, may include (but shall not be deemed limited to):
establishing, amending or waiving the forms, terms, conditions or duration of
Options granted hereunder or subject to grant hereunder, so as to provide for
earlier, later, extended or additional terms for exercise of the whole, or any
installment thereof (provided that, except as permitted by the provisions of
this Section and Section 9.1 hereof, in no event will any Option be exercisable
within the first six months of its respective term); alternate forms of payment;
or other modifications. The Committee may take any such actions pursuant to this
Section 3.4 by adopting rules or regulations of general applicability to all
Optionees, or to certain categories of Optionees; by amending or waiving terms
and conditions in stock option agreements; or by taking action with respect to
individual Optionees. The Committee may take any such actions before or after
the public announcement of any such Change in Control, tender offer, exchange
offer, merger, consolidation, acquisition or sale or transfer of assets.
4. SHARES AVAILABLE:
4.1 Subject to the provisions of Sections 4.2 and 4.3 hereof, the
aggregate number of shares of Common Stock to be subject to Options under this
Plan shall not exceed 50,000 shares. Such shares shall be made available from
the authorized but unissued shares of Common Stock of the Corporation.
4.2 Shares subject to an Option, to the extent such shares are
surrendered or withheld to pay the exercise price of the Option, are no longer
available for issuance hereunder. Other shares subject to Options granted under
this Plan, which Options have been canceled or have expired or are unexercised
and no longer outstanding, shall thereupon become available for issuance
pursuant to other Options granted under the Plan. This Section 4.2 shall in all
cases be interpreted in a manner consistent with Rule 16b-3, as amended from
time to time.
4.3 The Committee may, at any time, make or provide for such
adjustments to the Plan, to the number and class of shares available thereunder
or to any outstanding Options as it shall deem appropriate to prevent dilution
or enlargement of the rights of Optionees, including adjustments in the event of
changes in the outstanding Common Stock by reason of stock dividends, stock
splits, distributions to shareholders (other than cash dividends),
recapitalizations, mergers, consolidations, combinations or exchanges of shares,
separations, reorganizations, liquidations and the like. Such adjustments may
include, in the discretion of the Committee, adjustments to the aggregate number
and kind of shares which may be issued pursuant to Options under this Plan, and
the number, kind and price of shares subject to each Option then outstanding.
5. ELIGIBILITY:
5.1 Officers and other full-time, salaried employees of the
Corporation and its affiliates shall be eligible to receive Options under the
Plan. No Option, however, may be
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granted to a person who, immediately after an Option is granted, owns directly
or indirectly shares of stock possessing more than 5% of the total combined
voting power or value of all classes of stock of the Corporation at the time
outstanding. For purposes of this paragraph only, an employee shall be deemed to
own directly or indirectly shares of stock which he may purchase under
outstanding Options.
5.2 A director of the Corporation or any of its affiliates who is not
also a regular, full-time employee of the Corporation or its affiliates will not
be eligible for Options under the Plan.
5.3 An employee who has been granted an Option otherwise under the
Plan may be granted additional Options, if the Committee shall so determine.
6. GRANTS:
6.1 Subject to the express provisions of this Plan, the Committee
shall have sole authority to determine the individuals to whom Options shall be
granted, the time or times at which Options shall be granted, the number of
shares of Common Stock to be subject to each Option granted, the period of each
Option and the time or times at or during which an Option may be exercised in
whole or in part, and all such other terms and conditions of such Options
granted as the Committee deems appropriate.
6.2 Each Option granted to an Optionee under this Plan shall, if
required by the Committee, be evidenced by a written agreement to be duly
executed and delivered by or on behalf of the Corporation and the Optionee and
containing provisions not inconsistent with the Plan.
7. OPTION PRICE:
The exercise price under each Option shall be established by the
Committee, but in no event shall it be less than 100% of the Fair Market Value
of the Common Stock on the date the Option is granted.
8. TERM OF OPTIONS:
The term of each Option shall be fixed by the Committee, but, subject to
the power of the Committee, among other things, to accelerate or otherwise
adjust the terms for exercise of Options pursuant to Section 3.4 hereof in the
event of the occurrence of any of the events set forth therein, no Option shall
be exercisable later than ten years from the date of grant of the Option or
earlier than six months from the date of grant of the Option, except as
otherwise provided in Section 9.1.
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9. EXERCISE OF OPTIONS:
9.1 Each Option granted under this Plan shall be exercisable in such
number of shares and, subject to the provisions of Section 8, at such time or
times, including periodic installments, as may be determined by the Committee at
the time of the grant. The six months from the date of the grant of the Option
restriction pursuant to Section 8 shall not be applicable to an Optionee in the
event that he dies prior to the expiration of such period. The right to acquire
shares pursuant to Options that are exercisable in installments shall be
cumulative so that when the right to acquire any shares has accrued such shares
or any part thereof may be acquired at any time thereafter until the expiration
or termination of the Option.
9.2 An Option may be exercised by giving written notice of exercise
to the Corporation specifying the number of shares to be purchased and by paying
in full in cash the exercise price. The proceeds received by the Corporation in
cash will be used for general corporate purposes.
9.3 If authorized by the Committee, the exercise price may also be
paid by (i) the delivery of shares of Common Stock with a Fair Market Value
equal to the exercise price, or (ii) a combination of cash and such Common Stock
equal to the exercise price.
9.4 Upon notification of the amount due and prior to, or concurrently
with, the delivery to the Optionee of a certificate representing any shares
purchased pursuant to the exercise of an Option, the Optionee shall promptly pay
to the Corporation any amount necessary to satisfy applicable federal, state or
local tax requirements.
9.5 An Optionee shall have none of the rights of a shareholder with
respect to the shares subject to any Option until such shares have been issued
and registered on the Corporation's transfer books upon exercise thereof.
10. NON-TRANSFERABILITY:
No Option granted under this Plan shall be transferable other than by
will or the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code, and an Option may be exercised during
the lifetime of the Optionee only by him or by his guardian or legal
representative.
11. TERMINATION OF EMPLOYMENT, RETIREMENT, DEATH OR CANCELLATION:
11.1 In the event that the employment of an Optionee is terminated,
for a reason other than retirement or death, no Option held by such Optionee
shall be exercisable later than three months after such Optionee shall have
ceased to be an employee of the Corporation or one of its affiliates or, if
earlier, later than the expiration date of the Option. The employment
relationship, however, will be treated as continuing intact while the Optionee
is on military or sick leave if the
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period of such leave does not exceed ninety days, or, if longer, so long as the
Optionee's right to re-employment is guaranteed either by statute or by
contract.
11.2 In the event that an Optionee shall retire or die while employed
by the Corporation or one of its affiliates, Options held by such Optionee may
be exercised by the Optionee or by the person designated in the will of the
Optionee or by the proper legal representative of the Optionee within one year
following the Optionee's death or one year following retirement, but in no event
later than the expiration date of the Option.
11.3 Notwithstanding the express term of the grant or the foregoing
provisions of this Section 11, Options shall terminate upon the termination of
the employment of the Optionee if the Corporation determines that such
termination is for deliberate, willful or gross misconduct, and the Options
shall terminate (whether or not the employment of the Optionee is terminated) if
the Corporation determines that the Optionee has improperly disclosed
confidential information of the Corporation and the Optionee is so notified.
12. LISTING AND REGISTRATION OF SHARES:
Each Option shall be subject to the requirement that, if at any time the
Committee shall determine in its discretion that the listing, registration or
qualification of the shares subject to such Option upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issuance or purchase of
shares thereunder, then such Option shall not be granted or exercised in whole
or in part unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
13. EFFECTIVE DATE:
This Plan is subject to approval by the shareholders of the Corporation.
The Plan will become effective on the date so approved. The Committee may, in
its discretion, grant Options conditioned upon the shareholders' subsequent
approval of the Plan.
14. DURATION AND AMENDMENT:
14.1 There is no express limitation upon the duration of the Plan.
14.2 The Board may terminate or may amend the Plan at any time,
provided, however, that the Board may not, without approval of the shareholders
of the Corporation, (i) increase the maximum number of shares for which Options
may be granted under the Plan, (ii) permit the granting of Options at less than
100% of Fair Market Value at time of grant, or (iii) change the class of
employees eligible to receive Options under the Plan. The transactions under
this Plan are intended to comply with Rule 16b-3 (or its successor), as amended
from time to time, promulgated pursuant to the Exchange Act, and the Corporation
may, but shall not be required
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to, submit any proposed Plan amendment to its shareholders for their approval to
assure continued compliance if such proposed amendment would, with respect to
any participant who is an officer, director or 10% shareholder of the
Corporation who is subject to Section 16 of the Exchange Act ("Control Person"),
(i) materially increase the benefits accruing to participants under the Plan, or
(ii) materially increase the number of securities which may be issued under the
Plan (this shall not affect the prohibition against increasing the maximum
number of shares for which Options may be granted under the Plan pursuant to the
previous paragraph without shareholder approval), or (iii) materially modify the
requirements as to eligibility for participation in the Plan.
15. MISCELLANEOUS:
With respect to any participant who is a Control Person, transactions
under this Plan are intended to comply with Rule 16b-3 (or its successor), as
amended from time to time, promulgated pursuant to the Exchange Act. Therefore,
to the extent any provision of the Plan or action by a person administering the
Plan fails to so comply, it shall be deemed null and void ab initio to the
extent permitted by law and deemed advisable by the Committee.
As evidence of its adoption of this Plan, the Corporation has caused
this document to be executed on its behalf this 1st day of July, 1999.
RGC RESOURCES, INC.
By:s/John B. Williamson, III
--------------------------
Its: President & CEO
-----------------------
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Exhibit 5
July 2, 1999
Board of Directors
RGC Resources, Inc.
519 Kimball Avenue, N.E.
Roanoke, Virginia 24016
In Re: Post-Effective Amendment to the Registration Statement on
Form S-8 (Registration No. 333-02455)
Gentlemen:
Reference is made to the Post-Effective Amendment to the Registration
Statement on Form S-8 (Registration No. 333-02455) of RGC Resources, Inc. (the
"Company"), filed by the Company as successor to Roanoke Gas Company ("Roanoke
Gas") following the reorganization of Roanoke Gas into a holding company
structure (the "Reorganization") in which Roanoke Gas became a wholly-owned
subsidiary of the Company by virtue of the merger of Roanoke Gas with RGC
Acquisition Corp., a wholly owned subsidiary of the Company, together with the
conversion of each outstanding share of common stock of Roanoke Gas into one
share of common stock, $5.00 par value per share, of the Company ("Common
Stock"). We have acted as your counsel with respect to certain corporate
proceedings in connection with the assumption by the Company of the Roanoke Gas
Company Key Employee Stock Option Plan (the "Plan").
We are generally familiar with your corporate affairs, including your
organization and the conduct of your corporate proceedings related thereto. We
also have examined such of your corporate records as we have deemed necessary as
the basis for this opinion. Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia.
2. The 50,000 shares of Company common stock which are the subject of
this Registration Statement have been duly and validly authorized, and when
issued pursuant to proper resolution of the Board of Directors of the Company
and upon the terms set forth in the above-referenced Registration Statement,
will be legally issued, fully paid and non-assessable.
The foregoing opinion is contingent upon the Registration Statement
becoming effective. We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
s/WOODS, ROGERS & HAZLEGROVE, P.L.C.
WOODS, ROGERS & HAZLEGROVE, P.L.C.
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment to
Registration Statement No. 333-02455 on Form S-8 of RGC Resources, Inc., of our
report dated October 20, 1998, incorporated by reference in the Annual Report on
Form 10-K of Roanoke Gas Company for the year ended September 30, 1998.
s/Deloitte & Touche LLP
Deloitte & Touche LLP
Charlotte, North Carolina
July 1, 1999
Exhibit 23(c)
ACCOUNTANTS' CONSENT
The Board of Directors
Roanoke Gas Company:
We consent to the use of our report, dated October 17, 1997, incorporated herein
by reference and to the reference to our firm under the heading "Experts" in the
prospectus.
s/KPMG LLP
KPMG LLP
Roanoke, Virginia
July 1, 1999
